Christine Flowers: Justice’s dissent on race doesn’t ring true

This week, Sonia Sotomayor stared down her colleagues in the majority and reminded them why her nomination created such a stir back in 2009: Race.

The first Hispanic justice to sit on the high court (unless you count Benjamin Cardozo) made a very public demonstration of her anger at the court’s decision on affirmative action this past Tuesday.

Moments earlier, Justice Anthony Kennedy had presented the relatively measured majority opinion confirming the State of Michigan’s right to statutorily bar the use of race in college admissions.

The ruling turned not upon whether race should be a determining factor but, rather, who gets to make the determination. The high court said the legislature.

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The Wise Latina disagreed.

In fact, the Wise Latina seethed. Here is a brief yet representative example of her opinion:

“In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

Justice Sonia also got a dig in at John Roberts, who had once famously said that “the way to end discrimination on the basis of race is to stop discriminating on the basis of race.” In her dissent, Madame Justice coyly observed that “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Liberals don’t do quips quite as well as conservatives do, but it’s only been five years on the bench. Judging from this performance, she’ll soon be slinging them as well as Scalia.

So yes, I’m being flip here. Frankly, that’s what I think this dissent deserves. Contrary to popular belief, the majority did not abolish affirmative action in college admissions. In 2003, the court definitively confirmed that race could be used among other factors in order to establish a balanced and diversified student body.

What the court has never done, at least not explicitly, is rule that race must be considered in admission policy. That left the door open for Michigan, and several other states, to pass laws that specifically ban the use of race in determining whether someone is worthier of an academic opportunity than someone else. Justice Sotomayor’s observation that the court is the crusading champion of equal protection might sound nice at the Democratic National Convention, but it doesn’t mean that judges can simply wave a magic gavel and force a constitutional mandate that doesn’t even exist.

It’s always nice to have diversity, although given the academic community’s opposition to anyone with a conservative point of view, you have to wonder if there shouldn’t be affirmative action for right-wingers. As someone once said, the opposite of diversity is university (philosophically speaking.)

But just because minority admissions might fall if race is taken out of the equation, you simply can’t say that color-blind legislation is unconstitutional. That whole ‘de facto’ discrimination argument has been stretched to untenable dimensions, and it does a great disservice to qualified minorities. Clarence Thomas, that most unfairly reviled of jurists, has often talked of the stigma of being looked at as an “affirmative action hire” with all of the unpleasant baggage — deserved or not — that it carries.

But even if you believe in affirmative action, you stand on shifting legal sands when you call it a right as opposed to a prophylactic apology from a troubled and guilt-ridden society. As John Roberts has noted, one can differ in good faith on the merits. But people who oppose affirmative action in education are not necessarily bigots (even though a few are.) They might just be the issue of white, ethnic, blue-collar families like my father, who benefitted from nothing other than his wits and inner fire. Some of those people authored the ban in Michigan, and they should not be stigmatized as bigots, certainly not by a justice of our highest court.

Sonia Sotomayor is an example of why affirmative action is a poison. Here is a woman who has reached the pinnacle of our profession, at a relatively young age, appointed by the first African-American president (apologies to Bill Clinton ) and she still sees barbed wire around her aspirations. When even the example of how much progress has been made still demands that preference be written in constitutional stone, we see how there will be never be enough social and legal penance to satisfy the generational victims. It might be uncomfortable for some to admit. Fine, the court hasn’t closed the door on race-based admissions.

But John Roberts was not being flippant when he made his infamous statement. He was telling the truth. And the Wise Latina and those who think like her are the ones averting their eyes.

Christine Flowers is an attorney and Delaware County resident. Her column appears every Sunday. Email her at cflowers1961@gmail.com.